Family Law lots of DISCRETION left to the decision maker have more non-exclusive FACTORS than black letter

r law 1) Matters that precede marriage, process of getting married, legal incidents of marriage 2) Termination of marriage 3) Economic issues surrounding termination MOST HEAVILY TESTED 4) Issues relating to children 5) Conflict of law I. MATTERS THAT PRECEDE THE MARRIAGE A) Agreements between H and W when they are not married nor planning to marry but are living together unmarried cohabitants two people living together having sex Issue: if make agreement will it be enforceable an express agreement IS enforceable between unmarried cohabitants provided that there is some consideration for it other than sex i.e. a contract that says if H and W split up H will pay W $500/mo i.e. in consideration of Ws effort in maintaining the home BUT NY will NOT imply a contract for equity purposes MUST be an express agreement B) H and W engaged to be married and want to enter into agreement prenuptial or anti-nuptial agreement 1) contract is usually a contingent planning document --- address what will happen if the marriage FAILS, mainly the economic issues 2) usually tested like this H and W now going thru divorce and one wants to challenge the validity of the pre-nup usually the poorer spouse i.e. the wife 3) H defends the pre-nup FACTORS a) agreement has to be in writing and signed by both parties b) couple must have married if says it is a pre-nup c) contract cannot contain an agreement that the parties will divorce or engage in conduct that will be grounds for a divorce d) contract cannot be the product of duress AND e) contract cannot be unconscionable NOT established just because a party waived all support --- usually only if the poorer party would be left incapable of being self-supporting i.e. would need to go on welfare C) H and W have kids before they are married non-marital children 1) non-martial child child conceived by and born to parents who NEVER marry

2) non-martial children have same rights as marital child inheritance, suing for wrongful death of parent, benefits under govt programs (Equal Protection issue) 3) Issue identity of their father a) if married is presumption that husband is the father b) lawsuit to establish paternity filiation proceeding litigating in Family Court --- can be brought by the mother, by the child acting through a guardian, by the state of NY, OR by a putitive father who wants to establish his status and the mother is denying it 1) States interest is that state does not want to pay to support the kid 2) must file the claim prior to the childs 21st birthday 3) standard of proof clear and convincing evidence 4) the mothers claim that the defendant had sex with her need not be corroborated 5) the defendants claim that other men had sex with the mother must be corroborated 6) DNA testing is admissible and can be ordered on the motion of ANY party if the test excludes the defendant as the father that is the end of the case -if shows greater than 95% possibility of paternity, creates a rebuttable presumption that the defendant is the father c) Equitable Estoppel if a man who is NOT a biological father of a child has held himself out as the father and acted as a father and developed a relationship with the child and supported the child and if the child has relied on that behavior, that man can be estopped from denying paternity dont need DNA testing *if you doubt your paternity do the blood test FIRST if you act like the father the court will treat you like one D) in NY, used to be tort actions available between unmarried people who romantically involved or married person and stranger Heart Balm Actions 1) have been abolished in NY a) breach of promise to marry i.e. breaking off the engagement b) seduction of a unmarried female father would have a cause of action for destroying her marriage prospects c) alienation of affections suit by a married person against a third person for turning the spouse against them often brought against suspected romantic partners or in-laws d) criminal conversation civil cause of action for adultery sue the person sleeping with your spouse

e) jactatation of marriage representing yourself as someones spouse when you are NOT really their spouse f) these causes of action are so disfavored that it is a FELONY to file a cause of action claiming any of these II. How do you get married? A) Need martial capacity marriage is considered a contract up as grounds for terminating a marriage 1) have to be sane 2) have to be old enough 3) same sex couples in NY can marry

these often also come

B) Need a ceremonial marriage 1) need a license govt gets to investigate whether you have capacity to marry; failure to obtain a license will not render the marriage void. 2) need a ceremony requires: a) need an officiant someone to preside at the ceremony anyone empowered to administer an oath b) need a witness usually have two best man and maid of honor c) must exchange promises NY must make a solemn declaration BUT there is no particular set of words that the law demands you speak Ceremony must occur at least 24 hours (but no more than 60 days) after the issuance of the marriage license. 3) common law marriage NOT recognized in NY --- if a couple enters into a valid common law marriage in a state that allows it and then move to NY, NY will treat them as married y Contractual marriage- when parties arent in the same location, each signs a contract in front of a witness and an officiant.

Consequences of Marriage y y Monogamy. Spouses have a reciprocal duty of fair and reasonable support. o Determined by looking at the resources of each spouse. o BUT always must prevent spouse becoming a public charge. y A spouse can get a support order without disturbing the marriage.

y y y

Can separately own property. Can have separate domiciles. Can enter into a contract, other spouse is not liable, except for necessities bills (food, medicine). o If a spouse is acting as an agent of the other, the other is a responsible principal.

Can commit torts against each other (no spousal immunity).

III. TERMINATION OF THE MARRIAGE A) A declaration of nullity use this when there was a pre-existing capacity issue that is so serious as to make your marriage utterly void 1) bigamy cannot already be married --- makes marriage VOID 2) incest cannot marry your ancestors, your descendants, your siblings whether of the whole OR half blood, lineal relatives up or down one generation i.e. aunt/uncle or niece/nephew BUT first cousins can marry *if only related by marriage can marry i.e. step-siblings *can be prosecuted for entering incestuous marriage up to 6 mos in jail NOTE: dont really need a declaration of nullity because marriage is VOID but may want it for clarity of the record and want judge to adjudicate custody, property division, etc. B) Suit for annulment also based on pre-existing capacity issues that make marriage voidable MUST get the annulment before you can walk away AND grounds for annulment can be waived by staying in the marriage after the capacity problem is removed 1) couple is too young non-age have to be 18 to marry in NY BUT if you marry under age 18 annulment is discretionary BUT if stay in marriage after turn 18 you WAIVE as a ground for annulment BUT if you are 16 or 17 you can get married with your parents consent BUT if you are 14 or 15 you can get married with your parents consent PLUS judicial approval 2) mental incapacity i.e. want of understanding at the time of the marriage and includes mental illness OR a developmental disability this would be usually done by guardian/committee of incapacitated spouse BUT if your mental illness dissipates and you stay in the marriage WAIVE grounds 3) duress i.e. a gun to your head must enter into the marriage freely WAIVE if stay in marriage after the threat is removed

4) fraud a misrepresentation or concealment of information by an engaged person regarding a matter that goes to an essential aspect of the marriage and not find out the truth until after the marriage a) Religion lies/secrets about religion DO go to an essential aspect of the marriage i.e. the level of intensity of your religious belief b) Procreation DOES go to essential aspect of the marriage 1) conceal the fact you cant have children 2) if you are carrier of genetic disorder that makes it risky to have children 3) if the woman is pregnant and lies about the fact that you are the father c) Sex 1) sexual history in a big way IS grounds for annulment i.e. after marriage admit you were a prostitute 2) misrepresent your sexual tendencies 3) lies relating to money, property or social status ARE NOT grounds for an annulment 5) Physical Incapacity an incurable, physical condition that prevents safe and normal sexual intercourse (i.e. inability to consummate the marriage) a) this has nothing to do with procreation issue is whether you can perform sexually b) presupposes a couple who havent had sex before they got married c) permanent and incurable is NOT performance anxiety or shyness or something that can be fixed through medication d) has nothing to do with inability or refusal to be affectionate e) ONLY ground on which NO jury trial available 6) 5 years incurable insanity after the marriage sane when married but become insane thereafter a) must be 3 court appointed psychiatrists who agree on diagnosis b) must testify that disease is medically incurable 7) Default Rules a) the testimony of either spousse by itself is insufficient grounds must always be corroborated b) usually get a jury trial c) absent special SOL annulment claims must be brought in 6 years C) Suit for legal separation allows spouses to live apart and adjudicates some collateral issue such as custody and support but does NOT end the marriage 1) on spouses health insurance so want to keep marriage intact so can continue to be covered; advantage to file joint tax return; inheritance

endangers improper

spouse

2) religious reasons against divorce 3) NO jury trial 4) can be permanent or temporary GROUNDS: a) cruel or inhuman treatment physical or mental abuse that the well being of the plaintiff spouse must render it unsafe or for the plaintiff to continue to cohabitate with the defendant i.e. domestic violence even isolated instances of violence seen as serious NOT need a pattern of violence i.e. mental abuse require ongoing behavior Note: is a SUBJECTIVE standard is this plaintiff suffering Note: if keep cohabitating after the cruelty is a factor Note: protective order is independent from separation action b) Abandonment 1) must be a voluntary departure by defendant spouse 2) must be without the consent of the other spouse 3) must be without justification 4) must be no intent to return BUT not have to abandon for any specified period *can be constructive NOT have to be a physical departure from the home if refuse to have sex with your spouse for an extended period of time is abandonment must be without consent and justification *NO statute of limitations on when can bring suit for separation c) Adultery an act of sex or deviant sex voluntarily performed with another person who is not your spouse during your marriage 1) if you are sexually assaulted or rape is NOT adultery 2) any sex act 3) has to be with another person 4) Affirmative Defenses: a) recrimination have to come to equity with clean hands if the defendant spouse can show that the plaintiff is guilty of offsetting adultery will DENY relief b) condonation form of waiver plaintiff spouse, after learning of the adultery, forgives the defendant and resumes cohabitation (sex) with the defendant c) connivance equivalent of entrapment plaintiff procured the adultery lured defendant into committing the act of adultery d) Statute of limitations 5 years from date of discovery to bring suit

5) Courts do not like this as a cause of action evidentiary rules a) spouses themselves can only testify about 1) to prove the marriage 2) to deny or disprove the adultery 3) to deny or rebut a defense b) CANNOT testify to prove the adultery can prove it with the testimony of the third person OR have to rely on circumstantial evidence (opportunity plus disposition i.e. love letters or gifts) c) testimony of a prostitute or a private detective must be corroborated d) Three Years of Consecutive Imprisonment e) Failure to Provide Economic Support if you are a non-working spouse who depends on the other spouse for support and they dont support you is grounds for separation and can get a support order D) Suit for Divorce 1) 6 Fault Grounds for Divorce in NY a) Cruel and inhuman treatment b) Abandonment must demonstrate that the abandonment has lasted for at least ONE full year c) Adultery d) Three Years Imprisonment Note: failure to support is NOT a grounds for divorce e) Conversion divorce --- the couple must first separate under a court legal separation order OR consensually by negotiating a separation and signing a separation agreement AND THEN must live separate and apart for ONE full year then go back to court and convert your separation into a divorce Note: agreement is subject to judicial scrutiny must be freely made (no undue influence), must be in writing, must be acknowledged (notarized) AND prior to divorce must file the separation agreement with the court Note: if during the period of separation you cohabit with intent to reconcile that rescinds the agreement Note: if under court ordered separation nothing will affect your entitlement to a conversion divorce Note: a material breach of the terms of the separation agreement will also not allow a conversion divorce

f) NOW No-Fault Divorce the irretrievable breakdown of the marriage established by the testimony of affidavit of ONE party saying so under oath and reciting that this has been true for at least 6 months BUT the divorce is not final until you resolve all collateral matters i.e. money and kids SO on exam say under new legislation entitled to get a no-fault divorce if irretrievably broken for at least 6 mos E) Dissolution when your spouse has disappeared requires proof that your spouse has been missing without any tidings for a period of at least 5 years i.e. is really a determination of death without a body 1) have to show you made a diligent search 2) you have to publish a request that your spouse return for three consecutive weeks in an English-language newspaper 3) plaintiff has to be a NY resident for at least a year or NY has to have been the matrimonial home at the time of the disappearance 4) DO NOT adjudicate any collateral issues --- other party to marriage is deemed dead IV. ECONOMIC ISSUES SURROUNDING MARITAL DISSOLUTION A) Alimony is called maintenance in NY 1) a court can award temporary maintenance while a domestic relations suit is pending in order to meet the needs of the economically weaker party and to preserve the status quo 2) New legislation has provisions providing mathematical calculations for temporary maintenance presumptive award but can be modified based on discretion **3) Post-judgment maintenance NOT automatic based on a showing of need by the applicant, poorer spouse --- becoming less common, for lower amounts, and for shorter duration a) equitable discretion when determining if to award and how much b) FACTORS 1) marital fault 2) the health and age of the parties 3) all matters that relate to earning capacity education, job skills, past employment history 4) whether or not either spouse will be the custodian of minor children 5) how property is going to be divided i.e. some property is income-producing

6) duration of the marriage in a marriage of short duration less likely to become economically dependent on each other 4) New legislation is a rebuttable presumption that the less moneyed spouse should receive counsel fees 5) Modification of Maintenance requires a substantial change in circumstances a) payor becomes disabled and cant work b) payor loses job c) recipient can no longer work NOTE: any modification is prospective ONLY past-due payments are liquidated debts Note: if separation agreement converted into divorce, court will require showing of extreme hardship before will modify Note: generally terminates on death of either party but agreement can provide otherwise Note: if recipient remarries or lives with someone as if married will terminate right to maintenance 6) What if you dont pay a) can seize assets i.e. bank account, personal property b) can garnish your wages i.e. wage reduction order c) can take away drivers license d) can take away professional license e) can take away recreational licenses f) if recipient has to sue to enforce can get counsel fees for the enforcement action ***B) Property Division NY is an equitable distribution state 1) Two Step Analysis a) categorize the assets personal property, real property, cash, stocks, bonds 1) husbands separate property 2) wifes separate property 3) marital assets b) look for separate property first 1) anything owned by the spouse PRIOR to the date of the wedding 2) any bequests or gifts AFTER the date of the marriage to either spouse in his or her sole name 3) property that the parties agree will be separate property 4) personal injury awards

5) appreciation in the value of anything in categories 1-4 unless the appreciation is due to active participation or effort by the spouse c) in NY being a homemaker and a parent can be active participation if frees up the person to develop the value of an asset i.e. restaurant appreciates in value because she stays home so he can be there all day d) marital property --- any property acquired during the pendency of the marriage i.e. the wedding gifts 1) includes all forms of salary, bonus, overtime and compensation 2) includes all business income from whatever source 3) includes gambling or lottery proceeds 4) includes vested pension rights or stock options 5) includes a professional license or degree earned or obtained after the date of the marriage --- person holding the asset keeps it but counts against what percent of assets would normally get Separate Property is not divided. o Anything owned prior to marriage. o Any gifts or inheritances received during marriage in sole or separate names. Not wedding gifts. o Anything spouses agree to treat as separate property. o Personal injury compensation. o Passive appreciation of the above is also separate property # any appreciation due to active conduct of any spouse is marital property (new value-initial value). y Marital Property- equitable distribution. o Everything earned during marriage by any spouse. o Includes professional degrees earned during marriage. Calculate PV of degree, give portion to wife. o Equitable Distribution- consider the factors for alimony, age, skills, etc.   Dont consider marital fault. Doesnt have to be 50/50. STEP 2 the court divides the martial property 1) each keep their own separate property 2) martial assets are divided equitably FACTORS

a) marital fault NOT generally considered except in exceptional circumstances that shock the conscience 3) assets can be distributed in kind or by a cash award a) cash is called a distributive award 4) the longer the duration of the marriage the more likely it is that the court will go with a 50/50 distribution V. TREATMENT OF CHILDREN A) Adoption -- Who is eligible to adopt? 1) a married couple acting together 2) a single person 3) a married minor can adopt his/her spouses children 4) a married person who is separated can adopt without getting other spouse involved but that spouse is not considered a parent 5) Who can be adopted ANYONE but point must be to form a bona fide parent-child relationship 6) KEY: obtaining the consent of all necessary parties or showing that it can be dispensed with a) if adoptee is under 18 both biological parents must consent b) if the adoptee is over 14 the adoptee must consent c) the parents right to consent is lost if they 1) surrender the child i.e. give up for adoption by turning over to adopting agency or state custody forfeit parental rights 2) parent is mentally incapacitated or otherwise incapable of caring for the child 3) if the parent has abandoned the child 6 months without any contact (usually the father of a non-marital child) 4) neglect by the parent one year with insubstantial contact 7) Petitioner(s) for Adoption interview, questionnaire, background check, home visits a) NY has a policy of religious matching b) if adoptee under 18 usually a 3 month trial period followed by a hearing to finalize the adoption and establish a full parent-child relationship C) Termination of Parental Rights can be done to get child disconnected from unfit parents takes place in Family Court 1) requires clear and convincing evidence of

a) neglect (near or impending danger/parent did not act as reas parent under the circumstances) b) abandonment c) mental incompetency d) abuse termination also occurs via minors marriage D) Child Support -- ALWAYS obligation to support your child a) if dont live with your child will be put into a number child support order generally applies to non-custodial parent 1) after the termination of the marriage 2) after a filiation proceeding 3) result of a petition for support filed in Family Court if a parent is just not taking care of the kids b) WHO must pay and for HOW LONG 1) biological parent 2) adoptive parent 3) step-parent if child would otherwise have to go on public assistance 4) someone equitably stopped from denying paternity 5) How long until the child is 21 can be ordered to pay support until the child finishes college if there are special circumstances i.e. financial ability by the parent and academic ability by the kid 6) Amount is set by statute percentage of income 7) once award entered is subject to modification 8) for nonpayment, seize assets, attach wages, take away licenses, hold in contempt, put you in jail Absent an greement between the prents, NY courts apply a mechanical forumal to determine the amount of the obligation if non custodial parents shre seems unjust or inappropriate the court may adjust it after considering several factors including the financial resources of each parent and child, disparity of respective incomes, the standard of living the child would have enjoyed had the marriage remained in tact. A self induced reduction in income by the payor spouse is not sufficient to have child support or maintenance reduced. E) Child Custody Determinations the best interest of the child 1) Subsidiary Factors VERY discretionary a) wishes of the parties

b) wishes of the child if over age 12 c) physical and mental health of all parties concerned d) age of the child e) medical condition of child that one parent equipped to deal with f) does either parent have a new companion and who is that g) has either parent committed an act of domestic violence h) can you keep siblings together by placing them with one parent i) Joint Custody are the parents cooperative with each other and do they live near each other F) Custody Dispute Between a Parent and a Non-Parent 1) in NY before you can petition for custody must be a statute that gives you standing is a statute for grandparents and siblings 2) if have statutory standing i.e. grandparent vs. parent presumption that is in best interest of child to be with the parent 3) non-parent has to show parent is unfit or that there are extraordinary circumstances G) Parent who has custody wants to re-locate MUST have court permission because make it hard for other parent to maintain a relationship with the child best interest of the child H) Visitation by Non-Custodial Parent almost NEVER denied even if you dont pay support contempt of court to not allow visitation *would rather order supervised visitation than deny it outright I) Visitation by a Non-Parent 1) need statutory standing i.e. grandparent Grandparents in NY have standing to seek court-ordered visitation even when the childs parents object. But the statute does not give grandparents automatic visitation rights over a parents objections. 2) even once have standing, NOT ENOUGH to show best interest of the child must show special circumstances establishing a substantial state interest in visitation in all situations except where a parent has died, there must be a sufficient existing relationship between child and grandparent and visitation must be in the childs best interests. If parent has died, the court considers only the childs best interests. In NY grandparents may also bring a special proceeding to gain custody of the child. A showing of extraordinary circumstances is required when child has lived away from parent and with grandparent for 24 consecutive months.

J) Case: lesbian couple one has kid through artificial insemination --- co-parent child get civil union in VT then come to NY *non-biological mother wants visitation but NO statutory standing BUT she would be considered a PARENT under VT law because civil union makes her a parent so under comity NY would honor the VT rule since she is a parent DOES have standing Separation Agreements Contract Principles Apply Must live separate and apart for 1 year pursuant to agreement to convert to divorce a. Wtch for cohabitation with intent to reconcile Provisions relating to children not binding on court Upon conversion divorce, agreement may: a) Incorporate and Survive divorce decree b) Agreement coexists with divorce decree ie either can be enforced c) POST EDL modification of support provision: A standard extreme hardship If court modifies support provision, can no longer sue on the contract as t that provision b. Merged into divorce decree 1)Agreement no longer exists decree governs Post EDL modification of support provision: substantial change in circumstances VI. Conflict of Laws A) Out of State Marriage if valid where happens will be honored UNLESS violates a strong state public policy B) Out of State Divorce if get divorced in another state and both spouses participate the divorce is honored in NY, cannot be collaterally attacked and is res judicata concerning ALL issues that could have been raised 1) ex parte divorce in another state prima facie valid in NY but can be collaterally attacked --- must show spouse WAS NOT A TRUE DOMICILIARY of the forum state i.e. just went there to get a divorce C) Divorce in a Foreign Country comity will recognize it in NY as long as both spouses participated BUT if only ONE spouse participated it is invalid

D) Out of State Child Support Orders as long as the initial order was entered by the home state of the child at the time of the suit NY will honor it uniform statute adopted in all 50 states (UCCJEA) avoid conflicting support orders home state has jurisdiction so long as parent or child continues to live there 1) Full Faith and Credit for Child Support Orders Act federal statute that requires deference to orders of the home state of the child E) Out of State Child Custody Orders all states defer to state the ordered initial custody order as long as either parent or the child remains in the state
Bilateral Divorce in Sister State Ex parte Divorce in Sister State Prima Facia valid in NY; non-participating party can attack the jurisdiction of rendering court. Cannot ask for divorce in one state and custody in NY, exhaust remedies. Bilateral Divorce in foreign country Ex parte Divorce in foreign country NY grants comity (credit) and this is used to avoid the 1 year waiting period for conversion divorces. INVALID IN NY. VALID IN NY